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Wednesday, 9 November 1904

Mr KELLY (Wentworth) - The honorable member is to be congratulated on the way in which he has put his case before the Committee, and also on the fact that he wants to bring all the details to light, in order that the matter may not be dealt with before the Committee is fully seized of the responsibility of its action. I can quite conceive that by acceding .to the honorable member's proposal, we might establish a precedent fraught with very serious consequences to the Commonwealth. I would therefore seriously suggest that before arriving at any favorable decision on this question, the Minister should have a return prepared showing exactly the amount in respect of which the Commonwealth might be held to be indebted, if such a precedent as is proposed were set.

Mr Storrer - I.t is a question, not of amount, but of justice.

Mr KELLY - It is in this case a question of memory, and the burden of proof seems to lie .against the departmental officer. But there may be other cases in which there is also conflict of memory. The departmental officers concerned in other cases may be absolutely in conflict with those laying claims for refunds, and if we take one litigant's word, it will be very difficult to refuse to take that of another. This case seems to be fairly well established by the fact that the honorable member for Riverina himself advised the payment under protest before it was actually made. Other cases might not be so clear, but if we accept one litigant's word, we must accept the word of all. For that reason I would strongly urge that the Department should be given a chance to find out how much is at issue before we set a precedent of so serious a nature as that which it is now proposed to establish.

Mr. HUTCHISON(Hindmarsh).When I spoke on this question at an earlier stage in the debate, I did not wish to arrive at any conclusion until we had heard the Minister's explanation. We have now had a statement by the Minister, as well as by the honorable member for Riverina, and we are told that it was on the advice of the latter that the owner of the engine paid the duty under protest. I am quite sure that advice given by any honorable member to a constituent in regard to a matter of this kind would be followed, and the honorable member has the assurance of the owner of the engine that in this case he acted according to his directions. This makes out a very strong case for a refund of the duty. In addition to that, we have to remember that, under the decision given by the High Court in the case of Cowan and Sons, this money would have been repayable had it been paid under written protest. Unfortunately, the protest was not in due form, but as that was owing to the fact that the honorable member was apparently not told by the Department that it was necessary to lodge a protest in writing, and the man himself did not understand that it was imperative that he should do so, I think that the Government is morally bound to grant a refund. I certainly have very grave doubts as to whether there are many cases similar to that which has just been brought forward by the honorable member for Riverina.

Mr Kennedy - To my knowledge, there are at least a dozen.

Mr HUTCHISON - If the honorable member for Moira could bring before the Committee a dozen cases similar to that now before us,T think that we should hold that, in each instance, a refund should be made. I do not ask the Minister to accept the word of one individual. It would be undesirable to do so, but in this instance the honorable member for Riverina tells us that, after consulting with the Department, he informed the man what steps were necessary to protect himself, and I have no doubt that a verbal protest was made. I suggest to the Minister that he should consult the officer who received the money.

Mr Kennedy - No doubt that has been done.

Mr HUTCHISON - We have no evidence as to that. I think it is only fair that the Minister should consult the officer, and ascertain whether he has any recollection of a verbal protest being made. If he has, we shall have all the proof necessary to justify a refund.

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